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HomeMy WebLinkAbout05936 - TRIEU DYLAN TRAN SETTLEMENT AGR FOR 5/26/07 INCIDENT RELEASE&SETTLEMENT AGREEMENT This Settlement Agreement and Release is made and entered into this 28th day of January 2010 by and between plaintiff CITY DE PALM SPRINGS, a municipal corporation, (hereinafter referred to as "Releasing Parry"and/or "Releasing Plaintiff) and TRI.EU DYLAN T AN(hereinafter referred to as "Released Party" and/or "Released Defendant'). Recitals L This agreement and release is entered into with reference to the followingfacts: Whereas,Releasing Party, asplainlijj,arldReleasedDefendant, cis defendant areparties to an action in tort for damages, number INC081769,presently pending in the Superior Court far the State of California, County of Riverside,India Judicial District, (Hereinafter "the action'); Whereas, Releasing Party and Released Defendant are desirous of ending the action, including each and every individual and derivative claim thereof that relates to Released Defendant prior to trial; Settlement&Release Accordingly, the parties agree as follows: 2. Mercury Insurance Group, on behalf of Released Defendant, shall pay to Releasing Party and its attorney ofrecord, and anyknown lien holders, the suni of Ten Thousand Dollars($I0,000.00)after execution and delivery of this Release&Settlement Agreement by Releasing Party and its attorney as well as delivery to Released Party of the fully executed Dismissal With Prejudice which pertains to the instant action. 3. In consideration of the payment provided for in paragraph 2 herein, Releasing Party and its heirs, successors and assigns do hereby release and forever discharge the Released Defendant, his agents, servants, representatives,predecessors, successors in heirs, and assigns and other persons,firms or corporations and his insurance carrier, Mercury Insurance Group of and from any and all past, present or future claims, causes of action, wrongful death claims, or any future wrongful death claim of plaintiffs representatives or insurers, demands, obligations, actions, causes ofaction, claimed rights and damages, costs, expenses, compensation ofany nature whatsoever and whetherfor compensatory or punitive damages, with which the Releasing Party, its heirs, successors or assigns now have or which may hereinafter accrue or otherwise be acquired on account of, or in any way arising out of, or which are subject of, the action filed herein being Counter of,Riverside, Superior Court, Central Judicial District, action number INCO81769. The ReleasingPart)r hereby absolutely andforeverreleases and discharges the Released Defendant from any and all matters which are the subject ofsaid complaint, including but without limitation, any and all known or unknown clainisforpersonal injuries and/orproperty damage, or any future wrongful death claim of plaintiff's representatives or insurers, and/or damages, and the consequences thereof, which may have resulted or result from the alleged acts or omissions of the Released Defendant which occurred on or about.May 26, 2007 at or near South Indian Canyon Drive, city of Palm Springs, county of Riverside,state of California,which is the.suljectniatterofthisaction. This Release&SettlementAgreementshall be fully binding as a complete release between theparties to this Settlement Agreement and all parties represented by or claiming through said parties, including plaintiffs Heins, as.szgns and successors. Attorneys'Fees 4. Each party Hereto shall bear all attorneys'fees and costs arisingfrom the actions of its own counsel in connection with this Settlement Agreement, the matters and documents referred to herein, and all related matters. Re: City ofPabn Springs v. Tran Release &Settlement Agreement ,Page 2 Delivery of Dismissal With Prejudice 5. Concurrently with the execution of this Settlement Agreement, counsel for the Releasing Party shall deliver to counsel for the Released Party or counsel for the insurer an executed Dismissal With Prejudice of the Complaint, Releasing Party hereby authorizes counselfor the Released Party andlor counselfor the insurer tofile said Dismissal with the court and enter it as a matter of record. Representation of Comprehension of Document 6. In entering into this Settlement Agreement the Releasing Party represents that it has relied upon the advice afits attorneys, who are the attorneys ofits own choice, concerning the legal and income tax consequences of this SettlementAgreement;that the terms of this SettlementAgreement have been completely read and explained to Releasing Party by its attorneys; and that the terms of this Settlement Agreement are fully understood and voluntarily accepted by Releasing Party. Warranty of Capacio) to Execute Agreement 7. Releasing Party represents and warrants that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes of action referred to in this SettlementAgreement, except as otherwise setforthherein;ihatReleasingParty has thesole right and exclusive authority to execute this SettlementAgreement and receive the sums specified in it; and that Releasing Party has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement. Confidentiality 8. The parties agree that neither they not,their attorneys nor representatives shall reveal to anyone, other than as may be mutually agreed to in writing, or as required for by law as the parties acknowledge that Releasing Party is a public agency, any ofthe terms of this SettlementAgreement or any of the amounts, number or terms and conditions of any sums payable to payees) hereunder. 9. For valuable consideration in the amount of Ten Thousand Dollars (SIO,000.00), Releasing Party releases the Released Defendant by this instrument and agrees that it shall be effective as a full and final accord and satisfaction and release of each and every claim or matter which is the subject of the County of Riverside, Superior Court,Indio.7udicialDistrict, case numberlNCO81769. Injurtherance ojthis intention,Releasing Party expressly waives Section 1542 of the Civil Code of the State of California, which provides as follows: "Section 1542: [Certain claims not affected by General Release.] A General Release does not extend to claims which a creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor." Releasing Party and Released Defendant hereby waive and relinquish every right or benefit which they have or may have under Section 1542 of the Civil Code of the state of California to the jidl extent that they may fully waive such right or benefit with regard to the subject matter of this agreement. In accordance with such waiver and relinquishment, Releasing Party and Released Defendant acknowledge that they are aware that they may hereafter discover facts in addition to or different from those which they now know, or believe to be true with respect to the subject matter of this agreement, but it is their intention fully,finally and forever to settle and release all released matters, known and unknown, suspected or unsuspected, which now exist, may exist, or previously existed between Releasing Party and Released Defendant and in furtherance ofsuch intention, the releases given Re: City afPalns Springs v. Tran Release&Settlement Agreement Page 3 herein shall be in and shall remain in effect as a full and complete release notwithstanding discovery of the existence of any such additional or different fact. 10. All parties hereto acknowledge and warrant that they have been represented by independent counsel of their own choosing throughout negotiations which preceded the execution of this agreement. All parties have read all of this agreement and have had it explained to them by their respective attorneys and all parties fully understand all the terms and their significance. 11. This agreement contains the entire agreement and understanding between and among the parties concerning the subject matter of this agreement and supersedes and replaces all prior negotiations, proposed agreements and agreements, written or oral. Allparties acknowledge that no otherparo,nor any agent or attorney ofsuch party has made any promise, representation or warranty, express or implied, which is not contained in this agreement to induce the execution of this agreement, All parties herein further acknowledge that they are not executing this agreement in reliance on anypromise, representation or warranty not contained in this agreement. 12, This agreement shall in all respects be interpreted, enforced and governed by the laws of the State of California. 13. Releasing Party agrees that by the terms of this agreement, its attorney shall dismiss the action as to Released Defendant with prejudice and without cost, attorneys'fees or other relief and understand that the effect of such dismissal will be to terminate their right to pursue the action against the Released Defendant or any claims which may have been alleged in the action against Released Defendant. 14. It is expressly understood and agreed that this agreement is being made solely for the purpose of avoiding the expense and inconvenience offurther litigation and it is not to be construed as an admission on the part of anyparty ofany unlawful or wrongful conduct, or of any liability to any other^party as alleged in the above- referenced action or otherwise, all of which is expressly denied. 15. The Releasing Party further declares and represents that no promise, inducement or agreement not herein expressed has been made to the Releasing Party and that this release contains the entire agreement between the Releasing Party and Released Defendant and that the terms of the release are contractual and not a mere recital. 16. Releasing Party agrees to execute any and all documents in furtherance of this settlement which are not inconsistent with the basic terns of this release, including dismissal with prejudice of any and all complaints on file regarding this action. Releasing Party agrees to execute any and all supplementary documents and to take all supplementary steps to give full farce and effect to the terms and intent of this release. 17, It isfurther Understood and agreed that this settlement is a compromise ofa doubtfnd and disputed claim and that settlement is not to be construed as an admission of liability on the part of Released Defendant TRIEU DYLAN TRAN and his insurance carrier, Mercury Ltsurance Group by whom liability is expressly denied. FOR YOUR PROTECTION, CALIFORNIA LAW REQUIRFS THE FOLLOWING TO APPEAR ON THIS FORM "It is unlawful to do any of the following, or to aid, abet, solicit, or conspire with any person to do any of thefollowing:(1)knowinglypresentor cause tobepresentedanyfalseorfraudulentclaimforthepaymentofaloss or injury, including payment ofa loss or injury under a contract of insurance" (Penal Code section 550) Re: City ofPahn Springs v. Tran Release &Settlement Agreement Page 4 The Releasing Party agrees and warrants that it has carefully read and understood the terms of this release and that it has not relied upon the representations or advice of any other parties, ar attorney not its awn. This release and the terms and conditions thereof were derennined in negotiations by and between and among the Releasing Party and Released Defendant and their respective counsel and representatives. THE UNDERSIGNED HAVE READ THE FOREGOING RELEASE AND FULLY UNDERSTAND IT AND AGREE AND RELEASE ANY AND ALL CLAIMS THAT THE YMAYHAVE WHICH RELATED INANY TVA OR WERE C9 USED BY THE INCIDENTS ON OR ABOUT Am Y26,2 0 0 7 A T OR NEAR SO UTH INDIAN CA NYON DRIVE, CITY OF PALMSPRINGS, COUNTY OF RBERSIDE,STATE OF CALIFORNIA. SIGNED, SEALED AND DELIVERED THISDAY OF FEER UARY, 20I0. CITY OF PALM SPRINGS Title: C �y r✓�<< Dated.•,% io ATTEST.• ity ClerR Date.• rAP ROVE AS TO d: J F City A torney Da d. j//0 APPROVED BY CITY COUNCIL -ar/Za/2010 A593� Dated., a aV 0D By: Woodruff, Spradlin &Smart, APC Alyson C. Suh, Esq. Attorney for Plaintiff Dated: By: Ghormley&Assoc., APC Scott L. Ghormley, Esq. Attorney for Defendant SLG/rar release amended2mpd